Preview
PATRICIA M. BAKST (SBN 125866)
1 LAW OFFICE OF PATRICIA M. BAKST D
11301 W. Olympic Blvd, Suite 467 3“ 9,50, Court of can .
2 Los Angeles, California 90064 County of Los Angt-i-l(e”Sma
Telephone: (3 10) 488-0924
3 Email: Trish.Bakst@gmai1.com NOV 0 '7 2018
4 Attorneys for Plaintiff, Isaac Andreasen Sheisri H. er’ Execuveomcer/Clerk
la Guadlan Deputy
5
6 .
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF LOS ANGELES
10 CASE NO: V U
ISAAC ANDREASEN ,
11 COMPLAINTFO 0 11
«‘ Plaintiff, I —-
12 1. VIOLATION OF STATUTES;
vs. -.- , . . .. 2. NEGLIGENCE PER SE;
13 3. NEGLIGENCE;
OCEANSIDE TRANSITIONAL 4. FAILURE TO PAY COMPENSATION
14 LIVING IN MALIBU, INC. and DOES WHEN DUE;
l-10, inclusive, 5. FAILURE TO PROVIDE PREMIUM
15 PAY FOR MISSED MEAL BREAKS;
Defendants. 6. FAILURE TO PROVIDE PREMIUM
16 PAY FOR MISSED REST BREAKS;
7. FAILURE TO PROVIDE ACCURATE
17 - EARNING STATEMENTS;
8. UNJUST ENRICHMENT;
18 9. UNFAIR AND UNLAWFUL BUSINESS
PRACTICES;
19 10. NEGLIGENT INFLICTION OF
20 EMOTIONAL DISTRESS
21 Plaintiff complains and alleges as follows:
22 1. At all times herein relevant, Plaintiff was a resident of the State of California,
23 County of Los Angeles.
24 2. Plal1&.lf,f,lfS; i,I1f,o}1’rI1eJd and believes that defendant, Oceanside Transitional Living
S11-J"
25 (“Oceanside”) is a corporation organized and existing under the laws of the State of California,
25 authorized to do business in California and doing business in the County of Los Angeles. Plaintiff
27 is informed and believes that Oceanside is an “employer” as dened by California Gclveljnment
28 Code, Sections l2926(d), 12940(a) and 12940(j)(4)(A). I
COMPLAINT
CASE MANAGEMENT CONFERENCE
g -is- M Q 8”?” _ N
Date
Craig Karlan
.
1 3. The true names and capacities of the defendants named herein as Does 1 through
2 10, inclusive, whether individual, corporate, associate or otherwise are unknown to Plaintiff who
3 therefore sues such defendants by ctitious names pursuant to California Code Civil Procedure
4 Section 474. Plaintiff is informed and believes that all of the Doc defendants are California
5 residents. Plaintiff will amend this Complaint to show such true names and capacities when they
6 have been determined.
7 4. Plaintiff is informed and believes, and thereby alleges that each of the defendants
8 herein was at all times relevant hereto the agent, employee or representative of the remaining
9 defendants and was acting at least in part, within the course and scope of such relationship in doing
10 the things herein alleged.
11 5. FEHA recognizes that business entities that are joint employers, integrated
12 enterprises or alter egos are considered as a single employer. Defendants make up a joint
13 employment relationship, an integrated enterprise and/or are alter egos such that they are a single
14 employer. Defendants exhibit an interrelation of operations, centralized control, common
15 management, and common nancial control such that they are a joint employer, integrated
16 enterprise and/or are alter egos. Therefore, Plaintiff is informed and believes, and thereby alleges
17 that each of the defendants was acting as a single or joint employer, and/or alter ego capacity such
18 that they are liable for the acts of their agents and/or employees.
19 BACKGROUND
20 6. Plaintiff was hired by Oceanside in or about February 2017 to work as an on-site
21 Resident Technician and House Manager. Plaintiff is a non-exempt employee who is paid $13.50
22 per hour. His over-tirne rate is $20.25 per hour.
23 7. In or about June or July 2018, Oceanside demanded that Plaintiff take a drug test,
24 which he did on July 7, 2018.
25 8. On or about July 12, 2018, at the demand and requirement of Oceanside, Plaintiff
26 disclosed the results of his drug test to Oceanside. As part of this disclosure, Oceanside required
27 Plaintiff to disclose and discuss certain private medical issues. These disclosures were made to the
28 owners of Oceanside, David Johnson and Katherine Johnson, as well as to the Director of OTL’s
2
COMPLAINT
1 Operations, Phillips Downey, and to another manager at Oceanside, Jennifer Vargas.
2 9. At the time Plaintiff made these medical disclosures to Oceanside, he expressly
3 stated that they were to be private and condential, whereupon Oceanside expressly assured
4 Plaintiff that his medical disclosures would remain condential and private and would not be
5 disclosed at anyone at all.
6 10. Despite the confidential nature of the discussions, and Oceanside’s express
7 promises not to disclose or discuss Plaintiffs medical disclosures, Oceanside nevertheless disclosed
3 and discussed Plaintiffs private medical information, including but not limited to the results of
9 Plaintiffs drug test, medical consultations and prescription drug use, to one or more of its
10 employees, and worse, to third parties.
11 1 1. Oceanside is an employer who provides health care plans to its employees,
12 including Plaintiff and is a business that owns and/or licenses personal information about is
13 employees.
14 FIRST CAUSE OF ACTION
15 VIOLATION OF STATUTES
16 (CIVIL CODE SECTIONS 56 and 1798.80)
17 ‘ (Against All Defendants)
18 12. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 11
19 above and incorporates the same herein by reference as though set forth in full.
20 13. The California Medical Information Act (“CMIA”), as set forth in Civil Code,
21 Section 56, prohibits anyone who provides a health care plan (such as an employer) from disclosing
22 any medical information regarding an enrollee or subscriber of a health care service plan (the
23 employee) without first obtaining an authorization.
24 14. Similarly, Califomia’s Customer Records Act,, as set forth in California Civil Code
25 , Section 1798.80, states that any business that “owns or licenses personal information about a
26 California resident shall implement and maintain reasonable security procedures and practices
27 appropriate to the nature of the information, to protect the personal information from unauthorized
28 access, destruction, use, modication, or disclosure.”
3
COMPLAINT
1 15. At all times herein mentioned, there was an employer/employee relationship
2 between Plaintiff and Oceanside during which time Oceanside provided a health care plan to
3 Plaintiff and other employees.
4 .16. In violation of Civil Code, Section 56, Oceanside disclosed Plaintiffs private
5 medical information without obtaining his authorization and in violation of their express agreement
6 and promise not to make such disclosures.
7 17. In violation of Civil Code, Section 1798.80, Oceanside failed to implement or
8 maintain a reasonable security procedure and practice to protect the personal medical information
9 provided to them by Plaintiff, and which information Oceanside required Plaintiff to provide.
10 18. As a proximate result of defendant’s violation of Civil Code, Sections 56 and
11 1798.80, Plaintiff has suffered and continues to suffer embarrassment, humiliation and mental
12 anguish, all to her damage in an amount according to proof.
13 SECOND CAUSE OF ACTION
14 NEGLIGENCE PER SE
15 (Against All Defendants)
16 19. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 18,
17 above and incorporates the same herein by reference as though set forth in ill.
18 20. The California Medical Information Act (“CMIA”), as set forth in Civil Code,
19 Section 56, prohibits anyone who provides a health care plan (such as an employer) from disclosing
20 any medical information regarding an enrollee or subscriber of a health care service plan (the
21 employee) without rst obtaining an authorization.
22 21. Similarly, California’s Customer Records Act,, as set forth in California Civil Code
23 , Section 1798.80, states that any business that “owns or licenses personal information about a
24 California resident shall implement and maintain reasonable security procedures and practices
25 appropriate to the nature ofthe information, to protect the personal information from unauthorized
26 access, destruction, use, modication, or disclosure.”
27 22. As such, an employer’s duties to comply and protect its employees’ privacy cannot
23 be waived as against public policy. I
4
COMPLAINT
. 1 23. The nature of the damages and injuries suffered by Plaintiffs are the kind that these
2 statutes were designed to prevent, including without limitation, physical, emotional, and nancial
3 harm, as set forth above.
4 24. Accordingly, Plaintiffs are entitled to recover statutory and compensatory damages
5 as set forth in the respective statutes and further amounts according to proof.
6 25. As alleged herein, Defendants were guilty of knowing and willfully violating the
7 statutes as well as oppression, fraud, and/or malice as dened in Civil Code section 3294, entitling
8 Plaintiffs, in addition to actual damages, exemplary and punitive damages, including statutory
9 treble damages, to make an example of, and punish Defendants, in an amount according to proof.
10 THIRD CAUSE OF ACTION
1l NEGLIGENCE
12 (Against All Defendants)
13 26. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 18,
14 above and incorporates the same herein by reference as though set forth in full.
15 27. Pursuant to the statutes cited herein, Defendants owed Plaintiffs a duty of due care
16 to ensure that his private medical information would be protected from disclosure.
17 28. Defendants breached their duties of care owed to Plaintiffs, for the reasons alleged
18 herein.
19 29. Defendant’s breach of their duties of due care was a substantial factor in causing
20 Plaintiffs damage and injuries.
21 30. As a direct and proximate result of Defendants’ breach of their duties of due care,
22 Plaintiffs have suffered damages and injuries, including without limitation, emotional, and nancial
23 harm, as set forth hereinabove, the exact amount of which are presently unknown. Plaintiff will
24 seek leave to amend this complaint or assert the same at trial, according to proof.
25 ///
3;; 26 ///
27 ///
28
5
COMPLAINT
l FOURTH CAUSE OF ACTION
2 FAILURE TO PAY COMPENSATION DUE
3 IN VIOLATION OF LABOR CODE SECTIONS 510 AND 1194
4 (Against All Defendants)
5
31. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 30,
6 above and incorporates the same herein by reference as though set forth in full.
7 32. Plaintiff was entitled to be paid for all hours worked, including, but not limited to,
8 regular pay and overtime pay, at either one and one half (1 ‘/2) times his regular rate of pay or two
9 (2) times his regular rate of pay as required by Labor Code §5 10 and the applicable wage order(s)
10 of the Industrial Welfare Commission.
11 33. Plaintiff was not an exempt employee as described by the requirements in the
12 Employment Laws and Regulations.
13 34. Defendant failed to pay Plaintiff all regular pay and overtime compensation to
14 which he was entitled.
15 35. Plaintiff is entitled to recover from Defendants all of such unpaid regular pay and
16 overtime compensation and premium pay, with pre-judgment interest, and reasonable attorneys’
17 fees, and costs of suit pursuant to Labor Code §l194.
18 FIFTH CAUSE OF ACTION
19 FAILURE TO PROVIDE PREMIUM PAY FOR MISSED MEAL BREAKS
20 VIOLATION OF LABOR CODE SECTIONS 226.7 AND 512
21 (Against All Defendants)
22 36. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 35,
23 above and incorporates the same herein by reference as though set forth in lll.
24 37. Plaintiff was entitled to a statutorily mandated meal break of thirty (30) minutes,
25 ' terrupted, for every ve (5) hours worked pursuant to Labor Code §5 12 (a) and the applicable
26 age order(s) of the Industrial Commission.
27 A 38. - Plaintiff was not an exempt employee as described in the requirements of the
9:‘ 28 mployment Laws and Regulations.
CO1?/[PLAINT
E .
I
l 1 39. On each day of Plaintiffs employment with Defendants, Defendants failed to
1 2 rovide him with statutorily mandated meal breaks to which he was entitled.
3 40. Plaintiff is entitled to recover from Defendants one (1) hour pay at the regular rate
4 or each required meal break not provided by Defendants on each of the above noted days that
5 laintiff was actively employed by the Defendants, together with pre-judgment interest and
6 easonable attorneys’ fees and costs of suit pursuant to Labor Code §218.5.
7 SIXTH CAUSE OF ACTION
8 FAILURE TO PROVIDE PREMIUM PAY FOR ALL MISSED REST BREAKS
9 VIOLATION OF LABOR CODE §226.7 AND WAGE ORDER LAWS
10 (Against All Defendants)
11 41. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 40,
12 above and incorporates the same herein by reference as though set forth in full.
13 42. During each day Plaintiff was actively employed by Defendant, Plaintiff was
14 entitled to a statutorily mandated rest break of ten (10) minutes for each four (4) hours worked
‘ 15 pursuant to the applicable wage order(s) of the Industrial Welfare Commission.
16 43. Plaintiff was not an exempt employee as described in the requirements of the
17 Employment Laws and Regulations.
18 44. On each day of Plaintiffs employment with Defendants, Defendants failed to
p 19 provide premium pay for all the missed rest breaks to which Plaintiff was entitled.
20 45. Plaintiff is entitled to recover from Defendants one (1) hour pay at the regular rate h
‘ 21 for each required paid rest break not provided by Defendants on days when Plaintiff was actively
I 22 employed by Defendants, together with prej udgment interest, reasonable attorneys’ fees, and costs
23 of suit pursuant to Labor Code §218.5
24 SEVENTH CAUSE OF ACTION
25 FAILURE TO PROVIDE ACCURATE EARNINGS STATEMENT
26 IN VIOLATION OF LABOR CODE §226
27 (Against All Defendants)‘
28 46. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 45,
7 .
_ . COMPLAINT
1 above and incorporates the same herein by reference as though set forth in full.
2 47. Plaintiff was not an exempt employee as described in the requirements of
l 3 California’s employment laws and regulations.
4 48. During Plaintiffs employment with Defendants, Defendants failed to provide
\ 5 Plaintiff with accurate wage and hour statements showing gross wages earned, the correct number
6 of hours worked, net wages earned, all applicable hour rates in effect during each pay period and
7 the corresponding number of hours worked at each hourly rate by the Plaintiff.
8 49. By failing to provide Plaintiff with an accurate statement of wages and hours,
9 Defendant misled Plaintiff to as to correct hourly wages, the number of hours worked and the
10 amount of pay to which he was entitled to receive.
11 50. Based on Defendants’ conduct, Defendants are liable for damages and statutory
12 penalties pursuant to California Labor Code §226(e), and other applicable provisions of the
13 Employment Laws and Regulations.
i 14 51. Failure to provide proper itemized statements resulted in injury to Plaintiff because
15 Plaintiff was not properly paid for overtime Work to which he was entitled, and Plaintiff has
16 suffered increased difculty in challenging the overtime rate and the amount not paid by Defendant.
17 52. Failure to provide itemized statements also resulted in damages in the form of lost
18 Social Security and a miscalculation of Plaintiffs taxes.
19 53. In committing the foregoing acts, Defendant is guilty of oppression, fraud or
20 malice, and, in addition to the actual damages caused, Plaintiff is entitled to recover punitive
21 damages.
22 54. Pursuant to Labor Code §226(e), Plaintiff is entitled to recover the greater of all
23 actual damages or $50.00 for the initial pay period in which the violation occurred and $100.00 for
1 24 each violation in a subsequent pay period, not exceeding an aggregate penalty of 25 $5,800, and is
25 entitled to an award of costs and reasonable attorneys’ fees.
26 ///
27 III
28 m
j 8
COMPLAINT
1 EIGHTH CAUSE or ACTION
2 UNJUST ENRICHMENT
3 (Against All Defendants)
4 55. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 54,
5 above and incorporates the same herein by reference as though set forth in ill.
6 56. Commencing in February 2017, and continuing through and including the present,
7 Plaintiff has worked for Defendant by providing time, hours, services, skills, labor, and effort to
8 Defendant.
9 57. At no time during his employment with Defendant was Plaintiff an exempt
10 employee as described by the FLSA or the requirements of California’s employment laws and
11 regulations. I
12 58. By failing to pay all of Plaintiffs overtime and doubletime wages, Defendant
13 intentionally failed to pay Plaintiff for all of his time at the legal minimum rate, as well as his
* 14 overtime rate, which wages were earned and due to him. As a result, Defendant has been unjustly
15 enriched at Plaintiffs expense and has beneted by being able to run its business without having
16 to pay for all services provided to it by Plaintiff.
17 59. As a direct result of Defendants’ unjust enrichment, Plaintiff has suffered damages
18 in an amount to be proven at trial but believed to be in excess of $100,000.
19 NINTH CAUSE OF ACTION
20 VIOLATION OF BUSINESS AND PROFESSIONS CODE §17200 ET SEQ.
21 (Against All Defendants)
22 60. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 59,
23 above and incorporates the same herein by reference though set forth in full.
24 61. Defendants’ acts and omissions as described herein violate California Labor Code
25 §§204, 226.7, 510, 512, and 2810.5 which mandate that every employer pay the minimum wage,
:. 26 pay for overtime wages, and provide premium pay for missed meal and rest breaks in a timely
27 fashion where appropriate.
28 62. Plaintiff brings this action under the provisions of the Business & Professions Code
9
COMPLAINT
1 §l7200 et seq. Among the persons adversely affected by the unfair business practices of
2 Defendants as alleged herein are all Defendants’ employees who did not receive the lawful wages
3 or premium pay to which they were entitled, as well as those who were not furnished with
4 employment records.
5 63. An action pursuant to Business & Professions Code §l720O et seq. is appropriate
6 and necessary because Defendants did not pay their employees timely earned wages, overtime
7 wages, or provide meal or rest periods as a general business practice contrary to the law of the State
8 of California.
9 64. Business and Professions §l7200 et seq. denes unfair competition to include any
10 “unfair,” “unlawful,” or “deceptive” business practice. It provides for injunctive and restitutionary
ll relief for violations. Defendants’ knowing and repeated violations of the Federal and State labor
12 laws constitute unfair, unlawil, and deceptive business practices.
13 65. As a direct and proximate result of Defendants’ conduct as alleged herein, Plaintiff
14 has been damaged in the amount of the sum of all unpaid wages, unpaid overtime wages, and
15 premium wages equal to (1) hour for each day he missed meal or rest periods to which he was
16 entitled. Under the §§ 17200 and 17203, Plaintiff is entitled to restitution of all such wages
17 wrongfully withheld by Defendants, together with interest thereon.
18 66. Under Business & Professions Code §l7203, Plaintiff seeks, on his own behalf and
19 on behalf of the People of the State of California, an order enjoining Defendant 'om continuing its
20 aforesaid unlawful practices. Injunctive relief is appropriate to avoid a multiplicity of suits for
21 continuing violations of Business & Professions Code §17200 et seq.
22 TENTH CAUSE OF ACTION
23 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
24 (Against All Defendants)
25 67. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 66,
£1. 26 above and incorporates the same herein by reference as though set forth in full.
27 68. The wrongful disclosure of Plaintiffs private medical information to third parties,
28 without consent, and in knowing violation of Plaintiffs right of privacy, was negligent and done
10
COMPLAINT
”
1 1 without regard for the consequences caused to Plaintiff and for the purpose of causing Plaintiff to p
2 suffer humiliation, mental anguish, and emotional and physical distress. Defendants’ conduct, in 1
i 3 confirming and ratifying the complained of conduct, was done with the knowledge that Plaintiff’ s
1 4 emotional and physical distress would thereby increase and was done with a wanton and reckless
5 disregard of the consequences to Plaintiff.
i 6 69. As a proximate result of defendants negligent iniction of emotional distress as
E 7 hereinabove alleged, Plaintiff has been harmed in that Plaintiff has suffered humiliation, mental
8 anguish, and emotional and physical distress, and has been injured in mind and health. As a result
i 9 of said distress and consequent harm, Plaintiff has suffered such damages in an amount in
1 10 accordance with proof at time of trial.
1 11 70. Defendants, and each of them, having engaged in the conduct hereinabove alleged,
i 12 acted oppressively and with reckless disregard of Plaintiffs rights and safety.
13 71. In addition, defendants, and each of them, authorized, ratied, knew of the
14 wrongful conduct complained of herein, but failed to take immediate and appropriate corrective
15 action to remedy the situation and thereby acted oppressively and with reckless disregard of
16 Plaintiffs rights and safety, and thereby entitling Plaintiff to an award of punitive damages.
F 17 PRAYER FOR RELIEF
‘ 18 WHEREFORE, Plaintiff prays for judgment against defendants as follows:
‘ 19 1. For compensatory economic damages for regular time wages, overtime wages, meal
20 period Wages, rest period wages, retirement benefits and other employee benefits, and all other
21 sums of money, together with interest on these amounts, according to proof; 1
p 22 2. Restitution of all unpaid wages and other monies owed and belonging to Plaintiff
23 that Defendant unlawilly withheld from her and retained for itself;
‘ 24 3. Liquidated damages and all other applicable statutory penalties;
25 4. Unpaid continuation wages owed for failing to timely pay all wages earned in an
26 amount to be proven at trial or through default;
27 5. Civil Penalties as set forth herein or in an amount to be proven at trial or through
28 default; I
l 1’ ‘ 11
COMPLAINT
l 1 6. For compensatory non—economic damages for losses resulting from humiliation, l
2 mental anguish and emotional distress, according to proof;
3 7. For an award of punitive damages, according to proof;
‘ 4 8. For attorneys’ fees and costs pursuant to statute;
5 9. For costs of suit;
i 6 10. For prejudgment interest under Civil Code § 3288 and Code of Civil Procedure §
l 7 998, and any other applicable statutory, or contractual basis;
8 11. For post-judgment interest;
l 9 12. An Order enjoining Defendants from continuing its unlawful practices; and,
l 10 13. For any other relief that is just and proper.
111
12 ATED: October 24, 2018 LAW OFFICE OF PATRICIA M. BAKST ’
13 ‘
14 6””?
V By:
1 15 Patricia M. Bakst, Esq,
y 16 Attorney for Plarntiff, Isaac Andreasen
t 17
18 4
1 19
| 20
21
‘ 22 I
1 23
24
‘ 25
‘Z: 26
27
28
[
A ;
12
COMPLAINT J
Preview
PATRICIA M. BAKST (SBN 125866) 1 LAW OFFICE OF PATRICIA M. BAKST D 11301 W. Olympic Blvd, Suite 467 3“ 9,50, Court of can . 2 Los Angeles, California 90064 County of Los Angt-i-l(e”Sma Telephone: (3 10) 488-0924 3 Email: Trish.Bakst@gmai1.com NOV 0 '7 2018 4 Attorneys for Plaintiff, Isaac Andreasen Sheisri H. er’ Execuveomcer/Clerk la Guadlan Deputy 5 6 . 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES 10 CASE NO: V U ISAAC ANDREASEN , 11 COMPLAINTFO 0 11 «‘ Plaintiff, I —- 12 1. VIOLATION OF STATUTES; vs. -.- , . . .. 2. NEGLIGENCE PER SE; 13 3. NEGLIGENCE; OCEANSIDE TRANSITIONAL 4. FAILURE TO PAY COMPENSATION 14 LIVING IN MALIBU, INC. and DOES WHEN DUE; l-10, inclusive, 5. FAILURE TO PROVIDE PREMIUM 15 PAY FOR MISSED MEAL BREAKS; Defendants. 6. FAILURE TO PROVIDE PREMIUM 16 PAY FOR MISSED REST BREAKS; 7. FAILURE TO PROVIDE ACCURATE 17 - EARNING STATEMENTS; 8. UNJUST ENRICHMENT; 18 9. UNFAIR AND UNLAWFUL BUSINESS PRACTICES; 19 10. NEGLIGENT INFLICTION OF 20 EMOTIONAL DISTRESS 21 Plaintiff complains and alleges as follows: 22 1. At all times herein relevant, Plaintiff was a resident of the State of California, 23 County of Los Angeles. 24 2. Plal1&.lf,f,lfS; i,I1f,o}1’rI1eJd and believes that defendant, Oceanside Transitional Living S11-J" 25 (“Oceanside”) is a corporation organized and existing under the laws of the State of California, 25 authorized to do business in California and doing business in the County of Los Angeles. Plaintiff 27 is informed and believes that Oceanside is an “employer” as dened by California Gclveljnment 28 Code, Sections l2926(d), 12940(a) and 12940(j)(4)(A). I COMPLAINT CASE MANAGEMENT CONFERENCE g -is- M Q 8”?” _ N Date Craig Karlan . 1 3. The true names and capacities of the defendants named herein as Does 1 through 2 10, inclusive, whether individual, corporate, associate or otherwise are unknown to Plaintiff who 3 therefore sues such defendants by ctitious names pursuant to California Code Civil Procedure 4 Section 474. Plaintiff is informed and believes that all of the Doc defendants are California 5 residents. Plaintiff will amend this Complaint to show such true names and capacities when they 6 have been determined. 7 4. Plaintiff is informed and believes, and thereby alleges that each of the defendants 8 herein was at all times relevant hereto the agent, employee or representative of the remaining 9 defendants and was acting at least in part, within the course and scope of such relationship in doing 10 the things herein alleged. 11 5. FEHA recognizes that business entities that are joint employers, integrated 12 enterprises or alter egos are considered as a single employer. Defendants make up a joint 13 employment relationship, an integrated enterprise and/or are alter egos such that they are a single 14 employer. Defendants exhibit an interrelation of operations, centralized control, common 15 management, and common nancial control such that they are a joint employer, integrated 16 enterprise and/or are alter egos. Therefore, Plaintiff is informed and believes, and thereby alleges 17 that each of the defendants was acting as a single or joint employer, and/or alter ego capacity such 18 that they are liable for the acts of their agents and/or employees. 19 BACKGROUND 20 6. Plaintiff was hired by Oceanside in or about February 2017 to work as an on-site 21 Resident Technician and House Manager. Plaintiff is a non-exempt employee who is paid $13.50 22 per hour. His over-tirne rate is $20.25 per hour. 23 7. In or about June or July 2018, Oceanside demanded that Plaintiff take a drug test, 24 which he did on July 7, 2018. 25 8. On or about July 12, 2018, at the demand and requirement of Oceanside, Plaintiff 26 disclosed the results of his drug test to Oceanside. As part of this disclosure, Oceanside required 27 Plaintiff to disclose and discuss certain private medical issues. These disclosures were made to the 28 owners of Oceanside, David Johnson and Katherine Johnson, as well as to the Director of OTL’s 2 COMPLAINT 1 Operations, Phillips Downey, and to another manager at Oceanside, Jennifer Vargas. 2 9. At the time Plaintiff made these medical disclosures to Oceanside, he expressly 3 stated that they were to be private and condential, whereupon Oceanside expressly assured 4 Plaintiff that his medical disclosures would remain condential and private and would not be 5 disclosed at anyone at all. 6 10. Despite the confidential nature of the discussions, and Oceanside’s express 7 promises not to disclose or discuss Plaintiffs medical disclosures, Oceanside nevertheless disclosed 3 and discussed Plaintiffs private medical information, including but not limited to the results of 9 Plaintiffs drug test, medical consultations and prescription drug use, to one or more of its 10 employees, and worse, to third parties. 11 1 1. Oceanside is an employer who provides health care plans to its employees, 12 including Plaintiff and is a business that owns and/or licenses personal information about is 13 employees. 14 FIRST CAUSE OF ACTION 15 VIOLATION OF STATUTES 16 (CIVIL CODE SECTIONS 56 and 1798.80) 17 ‘ (Against All Defendants) 18 12. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 11 19 above and incorporates the same herein by reference as though set forth in full. 20 13. The California Medical Information Act (“CMIA”), as set forth in Civil Code, 21 Section 56, prohibits anyone who provides a health care plan (such as an employer) from disclosing 22 any medical information regarding an enrollee or subscriber of a health care service plan (the 23 employee) without first obtaining an authorization. 24 14. Similarly, Califomia’s Customer Records Act,, as set forth in California Civil Code 25 , Section 1798.80, states that any business that “owns or licenses personal information about a 26 California resident shall implement and maintain reasonable security procedures and practices 27 appropriate to the nature of the information, to protect the personal information from unauthorized 28 access, destruction, use, modication, or disclosure.” 3 COMPLAINT 1 15. At all times herein mentioned, there was an employer/employee relationship 2 between Plaintiff and Oceanside during which time Oceanside provided a health care plan to 3 Plaintiff and other employees. 4 .16. In violation of Civil Code, Section 56, Oceanside disclosed Plaintiffs private 5 medical information without obtaining his authorization and in violation of their express agreement 6 and promise not to make such disclosures. 7 17. In violation of Civil Code, Section 1798.80, Oceanside failed to implement or 8 maintain a reasonable security procedure and practice to protect the personal medical information 9 provided to them by Plaintiff, and which information Oceanside required Plaintiff to provide. 10 18. As a proximate result of defendant’s violation of Civil Code, Sections 56 and 11 1798.80, Plaintiff has suffered and continues to suffer embarrassment, humiliation and mental 12 anguish, all to her damage in an amount according to proof. 13 SECOND CAUSE OF ACTION 14 NEGLIGENCE PER SE 15 (Against All Defendants) 16 19. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 18, 17 above and incorporates the same herein by reference as though set forth in ill. 18 20. The California Medical Information Act (“CMIA”), as set forth in Civil Code, 19 Section 56, prohibits anyone who provides a health care plan (such as an employer) from disclosing 20 any medical information regarding an enrollee or subscriber of a health care service plan (the 21 employee) without rst obtaining an authorization. 22 21. Similarly, California’s Customer Records Act,, as set forth in California Civil Code 23 , Section 1798.80, states that any business that “owns or licenses personal information about a 24 California resident shall implement and maintain reasonable security procedures and practices 25 appropriate to the nature ofthe information, to protect the personal information from unauthorized 26 access, destruction, use, modication, or disclosure.” 27 22. As such, an employer’s duties to comply and protect its employees’ privacy cannot 23 be waived as against public policy. I 4 COMPLAINT . 1 23. The nature of the damages and injuries suffered by Plaintiffs are the kind that these 2 statutes were designed to prevent, including without limitation, physical, emotional, and nancial 3 harm, as set forth above. 4 24. Accordingly, Plaintiffs are entitled to recover statutory and compensatory damages 5 as set forth in the respective statutes and further amounts according to proof. 6 25. As alleged herein, Defendants were guilty of knowing and willfully violating the 7 statutes as well as oppression, fraud, and/or malice as dened in Civil Code section 3294, entitling 8 Plaintiffs, in addition to actual damages, exemplary and punitive damages, including statutory 9 treble damages, to make an example of, and punish Defendants, in an amount according to proof. 10 THIRD CAUSE OF ACTION 1l NEGLIGENCE 12 (Against All Defendants) 13 26. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 18, 14 above and incorporates the same herein by reference as though set forth in full. 15 27. Pursuant to the statutes cited herein, Defendants owed Plaintiffs a duty of due care 16 to ensure that his private medical information would be protected from disclosure. 17 28. Defendants breached their duties of care owed to Plaintiffs, for the reasons alleged 18 herein. 19 29. Defendant’s breach of their duties of due care was a substantial factor in causing 20 Plaintiffs damage and injuries. 21 30. As a direct and proximate result of Defendants’ breach of their duties of due care, 22 Plaintiffs have suffered damages and injuries, including without limitation, emotional, and nancial 23 harm, as set forth hereinabove, the exact amount of which are presently unknown. Plaintiff will 24 seek leave to amend this complaint or assert the same at trial, according to proof. 25 /// 3;; 26 /// 27 /// 28 5 COMPLAINT l FOURTH CAUSE OF ACTION 2 FAILURE TO PAY COMPENSATION DUE 3 IN VIOLATION OF LABOR CODE SECTIONS 510 AND 1194 4 (Against All Defendants) 5 31. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 30, 6 above and incorporates the same herein by reference as though set forth in full. 7 32. Plaintiff was entitled to be paid for all hours worked, including, but not limited to, 8 regular pay and overtime pay, at either one and one half (1 ‘/2) times his regular rate of pay or two 9 (2) times his regular rate of pay as required by Labor Code §5 10 and the applicable wage order(s) 10 of the Industrial Welfare Commission. 11 33. Plaintiff was not an exempt employee as described by the requirements in the 12 Employment Laws and Regulations. 13 34. Defendant failed to pay Plaintiff all regular pay and overtime compensation to 14 which he was entitled. 15 35. Plaintiff is entitled to recover from Defendants all of such unpaid regular pay and 16 overtime compensation and premium pay, with pre-judgment interest, and reasonable attorneys’ 17 fees, and costs of suit pursuant to Labor Code §l194. 18 FIFTH CAUSE OF ACTION 19 FAILURE TO PROVIDE PREMIUM PAY FOR MISSED MEAL BREAKS 20 VIOLATION OF LABOR CODE SECTIONS 226.7 AND 512 21 (Against All Defendants) 22 36. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 35, 23 above and incorporates the same herein by reference as though set forth in lll. 24 37. Plaintiff was entitled to a statutorily mandated meal break of thirty (30) minutes, 25 ' terrupted, for every ve (5) hours worked pursuant to Labor Code §5 12 (a) and the applicable 26 age order(s) of the Industrial Commission. 27 A 38. - Plaintiff was not an exempt employee as described in the requirements of the 9:‘ 28 mployment Laws and Regulations. CO1?/[PLAINT E . I l 1 39. On each day of Plaintiffs employment with Defendants, Defendants failed to 1 2 rovide him with statutorily mandated meal breaks to which he was entitled. 3 40. Plaintiff is entitled to recover from Defendants one (1) hour pay at the regular rate 4 or each required meal break not provided by Defendants on each of the above noted days that 5 laintiff was actively employed by the Defendants, together with pre-judgment interest and 6 easonable attorneys’ fees and costs of suit pursuant to Labor Code §218.5. 7 SIXTH CAUSE OF ACTION 8 FAILURE TO PROVIDE PREMIUM PAY FOR ALL MISSED REST BREAKS 9 VIOLATION OF LABOR CODE §226.7 AND WAGE ORDER LAWS 10 (Against All Defendants) 11 41. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 40, 12 above and incorporates the same herein by reference as though set forth in full. 13 42. During each day Plaintiff was actively employed by Defendant, Plaintiff was 14 entitled to a statutorily mandated rest break of ten (10) minutes for each four (4) hours worked ‘ 15 pursuant to the applicable wage order(s) of the Industrial Welfare Commission. 16 43. Plaintiff was not an exempt employee as described in the requirements of the 17 Employment Laws and Regulations. 18 44. On each day of Plaintiffs employment with Defendants, Defendants failed to p 19 provide premium pay for all the missed rest breaks to which Plaintiff was entitled. 20 45. Plaintiff is entitled to recover from Defendants one (1) hour pay at the regular rate h ‘ 21 for each required paid rest break not provided by Defendants on days when Plaintiff was actively I 22 employed by Defendants, together with prej udgment interest, reasonable attorneys’ fees, and costs 23 of suit pursuant to Labor Code §218.5 24 SEVENTH CAUSE OF ACTION 25 FAILURE TO PROVIDE ACCURATE EARNINGS STATEMENT 26 IN VIOLATION OF LABOR CODE §226 27 (Against All Defendants)‘ 28 46. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 45, 7 . _ . COMPLAINT 1 above and incorporates the same herein by reference as though set forth in full. 2 47. Plaintiff was not an exempt employee as described in the requirements of l 3 California’s employment laws and regulations. 4 48. During Plaintiffs employment with Defendants, Defendants failed to provide \ 5 Plaintiff with accurate wage and hour statements showing gross wages earned, the correct number 6 of hours worked, net wages earned, all applicable hour rates in effect during each pay period and 7 the corresponding number of hours worked at each hourly rate by the Plaintiff. 8 49. By failing to provide Plaintiff with an accurate statement of wages and hours, 9 Defendant misled Plaintiff to as to correct hourly wages, the number of hours worked and the 10 amount of pay to which he was entitled to receive. 11 50. Based on Defendants’ conduct, Defendants are liable for damages and statutory 12 penalties pursuant to California Labor Code §226(e), and other applicable provisions of the 13 Employment Laws and Regulations. i 14 51. Failure to provide proper itemized statements resulted in injury to Plaintiff because 15 Plaintiff was not properly paid for overtime Work to which he was entitled, and Plaintiff has 16 suffered increased difculty in challenging the overtime rate and the amount not paid by Defendant. 17 52. Failure to provide itemized statements also resulted in damages in the form of lost 18 Social Security and a miscalculation of Plaintiffs taxes. 19 53. In committing the foregoing acts, Defendant is guilty of oppression, fraud or 20 malice, and, in addition to the actual damages caused, Plaintiff is entitled to recover punitive 21 damages. 22 54. Pursuant to Labor Code §226(e), Plaintiff is entitled to recover the greater of all 23 actual damages or $50.00 for the initial pay period in which the violation occurred and $100.00 for 1 24 each violation in a subsequent pay period, not exceeding an aggregate penalty of 25 $5,800, and is 25 entitled to an award of costs and reasonable attorneys’ fees. 26 /// 27 III 28 m j 8 COMPLAINT 1 EIGHTH CAUSE or ACTION 2 UNJUST ENRICHMENT 3 (Against All Defendants) 4 55. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 54, 5 above and incorporates the same herein by reference as though set forth in ill. 6 56. Commencing in February 2017, and continuing through and including the present, 7 Plaintiff has worked for Defendant by providing time, hours, services, skills, labor, and effort to 8 Defendant. 9 57. At no time during his employment with Defendant was Plaintiff an exempt 10 employee as described by the FLSA or the requirements of California’s employment laws and 11 regulations. I 12 58. By failing to pay all of Plaintiffs overtime and doubletime wages, Defendant 13 intentionally failed to pay Plaintiff for all of his time at the legal minimum rate, as well as his * 14 overtime rate, which wages were earned and due to him. As a result, Defendant has been unjustly 15 enriched at Plaintiffs expense and has beneted by being able to run its business without having 16 to pay for all services provided to it by Plaintiff. 17 59. As a direct result of Defendants’ unjust enrichment, Plaintiff has suffered damages 18 in an amount to be proven at trial but believed to be in excess of $100,000. 19 NINTH CAUSE OF ACTION 20 VIOLATION OF BUSINESS AND PROFESSIONS CODE §17200 ET SEQ. 21 (Against All Defendants) 22 60. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 59, 23 above and incorporates the same herein by reference though set forth in full. 24 61. Defendants’ acts and omissions as described herein violate California Labor Code 25 §§204, 226.7, 510, 512, and 2810.5 which mandate that every employer pay the minimum wage, :. 26 pay for overtime wages, and provide premium pay for missed meal and rest breaks in a timely 27 fashion where appropriate. 28 62. Plaintiff brings this action under the provisions of the Business & Professions Code 9 COMPLAINT 1 §l7200 et seq. Among the persons adversely affected by the unfair business practices of 2 Defendants as alleged herein are all Defendants’ employees who did not receive the lawful wages 3 or premium pay to which they were entitled, as well as those who were not furnished with 4 employment records. 5 63. An action pursuant to Business & Professions Code §l720O et seq. is appropriate 6 and necessary because Defendants did not pay their employees timely earned wages, overtime 7 wages, or provide meal or rest periods as a general business practice contrary to the law of the State 8 of California. 9 64. Business and Professions §l7200 et seq. denes unfair competition to include any 10 “unfair,” “unlawful,” or “deceptive” business practice. It provides for injunctive and restitutionary ll relief for violations. Defendants’ knowing and repeated violations of the Federal and State labor 12 laws constitute unfair, unlawil, and deceptive business practices. 13 65. As a direct and proximate result of Defendants’ conduct as alleged herein, Plaintiff 14 has been damaged in the amount of the sum of all unpaid wages, unpaid overtime wages, and 15 premium wages equal to (1) hour for each day he missed meal or rest periods to which he was 16 entitled. Under the §§ 17200 and 17203, Plaintiff is entitled to restitution of all such wages 17 wrongfully withheld by Defendants, together with interest thereon. 18 66. Under Business & Professions Code §l7203, Plaintiff seeks, on his own behalf and 19 on behalf of the People of the State of California, an order enjoining Defendant 'om continuing its 20 aforesaid unlawful practices. Injunctive relief is appropriate to avoid a multiplicity of suits for 21 continuing violations of Business & Professions Code §17200 et seq. 22 TENTH CAUSE OF ACTION 23 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 24 (Against All Defendants) 25 67. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 66, £1. 26 above and incorporates the same herein by reference as though set forth in full. 27 68. The wrongful disclosure of Plaintiffs private medical information to third parties, 28 without consent, and in knowing violation of Plaintiffs right of privacy, was negligent and done 10 COMPLAINT ” 1 1 without regard for the consequences caused to Plaintiff and for the purpose of causing Plaintiff to p 2 suffer humiliation, mental anguish, and emotional and physical distress. Defendants’ conduct, in 1 i 3 confirming and ratifying the complained of conduct, was done with the knowledge that Plaintiff’ s 1 4 emotional and physical distress would thereby increase and was done with a wanton and reckless 5 disregard of the consequences to Plaintiff. i 6 69. As a proximate result of defendants negligent iniction of emotional distress as E 7 hereinabove alleged, Plaintiff has been harmed in that Plaintiff has suffered humiliation, mental 8 anguish, and emotional and physical distress, and has been injured in mind and health. As a result i 9 of said distress and consequent harm, Plaintiff has suffered such damages in an amount in 1 10 accordance with proof at time of trial. 1 11 70. Defendants, and each of them, having engaged in the conduct hereinabove alleged, i 12 acted oppressively and with reckless disregard of Plaintiffs rights and safety. 13 71. In addition, defendants, and each of them, authorized, ratied, knew of the 14 wrongful conduct complained of herein, but failed to take immediate and appropriate corrective 15 action to remedy the situation and thereby acted oppressively and with reckless disregard of 16 Plaintiffs rights and safety, and thereby entitling Plaintiff to an award of punitive damages. F 17 PRAYER FOR RELIEF ‘ 18 WHEREFORE, Plaintiff prays for judgment against defendants as follows: ‘ 19 1. For compensatory economic damages for regular time wages, overtime wages, meal 20 period Wages, rest period wages, retirement benefits and other employee benefits, and all other 21 sums of money, together with interest on these amounts, according to proof; 1 p 22 2. Restitution of all unpaid wages and other monies owed and belonging to Plaintiff 23 that Defendant unlawilly withheld from her and retained for itself; ‘ 24 3. Liquidated damages and all other applicable statutory penalties; 25 4. Unpaid continuation wages owed for failing to timely pay all wages earned in an 26 amount to be proven at trial or through default; 27 5. Civil Penalties as set forth herein or in an amount to be proven at trial or through 28 default; I l 1’ ‘ 11 COMPLAINT l 1 6. For compensatory non—economic damages for losses resulting from humiliation, l 2 mental anguish and emotional distress, according to proof; 3 7. For an award of punitive damages, according to proof; ‘ 4 8. For attorneys’ fees and costs pursuant to statute; 5 9. For costs of suit; i 6 10. For prejudgment interest under Civil Code § 3288 and Code of Civil Procedure § l 7 998, and any other applicable statutory, or contractual basis; 8 11. For post-judgment interest; l 9 12. An Order enjoining Defendants from continuing its unlawful practices; and, l 10 13. For any other relief that is just and proper. 111 12 ATED: October 24, 2018 LAW OFFICE OF PATRICIA M. BAKST ’ 13 ‘ 14 6””? V By: 1 15 Patricia M. Bakst, Esq, y 16 Attorney for Plarntiff, Isaac Andreasen t 17 18 4 1 19 | 20 21 ‘ 22 I 1 23 24 ‘ 25 ‘Z: 26 27 28 [ A ; 12 COMPLAINT J